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When the facts don’t fit your argument for snooping, just make them up

commons dayIn today’s Times, Nick Herbert MP has written an article calling for the return of the Communications Data Bill. Although it’s not clear he has read it.

As copyright law prohibits us from reproducing the entire article, we have had to pick and choose which errors to reproduce here. Which has proved tricky, as most of the article is wrong or misleading in some way.

“Clever use of surveillance technology doesn’t recruit terrorists; it puts them in jail

To claim that letting the security agencies find out who terrorist suspects have been talking to is as evil as hacking down an unarmed soldier is a sign of missing judgment.”

Under Part 2 of the Regulation of Investigatory Powers Act, the Security Services and Police already have the power to find out who a suspected terrorist is talking to. How they do this, from covert human intelligence sources, covert surveillance, directed surveillance or intercept is up to them.

“The call, after the murder of Drummer Lee Rigby, to revive a Government Bill that would allow the authorities to monitor the online activity of possible terrorists has been met with a paranoid libertarianism that denies any sense of proportion.”

See above. If someone is a possible terrorist, the police and agencies can already monitor their online activity. If, for example, an encrypted form of communication is used (like Facebook) then the Communications Data Bill would not have yielded any information – the only way to find out is under the powers outlined above or by voluntary co-operation with the foreign service provider.

Oh, and for extra clarity, there is a problem here – but it’s not legislation. But don’t take our word for it – as Bernard Hogan-Howe said, police technology “is more green-screen than it is iPad, I am afraid, and it does not seem to catch criminals.”

“But using new technology to intercept terrorist plots doesn’t recruit terrorists: it jails them”

Now Mr Herbert makes the same mistake that Sir Malcolm Rifkind made yesterday. The Communications Data Bill prohibited the interception of communications and the viewing of content. However, that power, yes, you’ve guessed – already exists. As we have said, we agree with the principle – if someone is a suspected terrorist then we hope their messages are being intercepted.

As we and many others have previously argued, the challenge is dealing with the volume of data – something the Communications Data Bill actually undermined, as it diverted billions of pounds to pay for the storage of data on everyone.

However, we do agree with the sentiment. That’s why we have repeatedly called on the ban on intercept evidence being used in court to be lifted.

“We cannot ever know whether allowing law enforcement agencies to access communications data would have prevented the murder of Lee Rigby”

We cannot. Which makes writing an article calling for legislation on Communications Data premature to say the least. However, if we are going to have an opinion, we’re more likely to take the point of view held by MI5, who have said it wouldn’t.

 “now a quarter of the data that the authorities need cannot be obtained because it is in the form of e-mails or messages on social media, and the proportion is set to rise sharply.”

We refer you to Sir Jonathan Evans, the director general of MI5, who told the Intelligence and Security Committee this figure rested on some “pretty heroic assumptions.

The committee itself said: “We do not believe that there is any benefit in providing superficially precise estimates of the size of this ‘capability gap’: unless there is a demonstrable basis for such figures they can be misleading.”

Now onto the Snooper’s charter:

“Some claimed that the measures would be used to enforce traffic offences or illegal music downloads. The Editor of The Spectator suggested that the main purpose of the Bill was “about giving espionage powers to the taxman”. All of these claims are absurd…..the laws currently controlling access to communications data would remain.”

Yet another error with the facts. Data already held by ISPs is being used to prosecute downloading, (the Court of Appeal judgement in one notable case is helpfully online here) while figures revealed by Big Brother Watch showed Humberside Police was indeed using comms data to prosecute traffic offences. (We presented this as evidence to the Joint Committee.) No other police forces were willing to give us the detailed breakdown, but one Chief Constable said in evidence he would feel it a fair use of the legislation. Indeed, once the data is held by a CSP, in the same way as any other piece of information held by a company, it can be disclosed to anyone who seeks an appropriate court warrant. Divorce lawyers and insurance companies included.

“But the paranoia that some display about state intrusion makes such rational consideration impossible. Communications data isn’t their only demon. Other crime-fighting tools such as CCTV cameras and the DNA database are seen as threats, too.“

We’re not sure if Mr Herbert voted for the Protection of Freedoms Act, however given he was a member of the Government at the time, we would expect so. If he didn’t have time to read that piece of legislation, he will be pleased to hear he helped pass legislation curtailing both CCTV and the DNA Database. We’d like to thank him for that.

It is right to ask wider questions about how this incident could have been prevented and the legal framework the police and agencies operate in. To do it in such a cavalier fashion, with factual errors and cheap rhetoric, is not the way to do it.

Posted on by Big Brother Watch Posted in CCDP, Civil Liberties, Communications Data Bill, Protection of Freedoms Bill, Surveillance

21 Responses to When the facts don’t fit your argument for snooping, just make them up

  1. John D Traynor

    As always, Tory MPs communicate with a concoction of misdirection and ignorance.

  2. Jeff Piper

    Lord Carlile also used the Lee Rigby case to try and resurrect the Bill and also said that we don’t know if it would have helped.

  3. anonymous

    They are not thinking rationally about these issues.

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  5. Richard Stow

    Well argued – the hysterical reactions of Herbert , May and others must be challenged, because they are getting an enormous amount of uncritical airtime from the national media including the BBC.

    But who is really behind the new push for this bill? Lobbyists? Civil service?

    • Guest

      How did you post a link on here without getting trapped in the spam filter?

      • Wolf Software

        Don’t post as a guest :)

  6. Andrew Watson

    You wrote: “We’re not sure if Mr Herbert voted for the Protection of Freedoms Act,
    however given he was a member of the Government at the time, we would
    expect so.”

    You expect right – on the occasions when he voted in divisions on the Protection of Freedoms Bill, he voted with the Government:

    http://www.publicwhip.org.uk/mp.php?id=uk.org.publicwhip/member/40047&showall=yes#divisions

  7. Guest

    Wait, who are the ones who are wanting it revived? I want to inspect their credit history, medical history, and driving ANPR history, wait what, you value your privacy? you must be a fecking terrorist!

  8. Jorge Orwell

    I have an email server in the US, I connect to it via an encrypted PTP VPN, the server also acts as a proxy server from which I can use a TOR client ( I do work for a US based company)

    All of the above is readily available and bypases the proposed act . . . how on earth is this act anything more than a way of controlling / spying on the innocent masses

    • Wolf Software

      This is a valid point and one that i cover in my article (link below). Anyone that this law wants to catch will already be using tools that will defeat it

  9. Dick_Puddlecote

    “CCTV cameras and the DNA database are seen as threats”

    He’d best not bring up CCTV cameras as an example. They were sold to us in precisely the same terms as Herbert is doing here, that they are purely for our safety. It is now a daily reality that they are used to spot parking offences – they’re even proud to send you the picture with the details of where the CCTV camera is and who operates it. Does Herbert really believe that if this bill allows these powers that authorities will not use them? If so, the guy’s a gullible fool.

  10. david

    It is worth looking at Denmark, where their Ministry of Justice has concluded: ‘five years of extensive Internet surveillance have proven to be of almost no use to the police. Session logging has caused serious practical problems…The implementation of session logging proved to be unusable to the police; this became clear the first time they tried to use [the data] as part of a criminal investigation’.

    Link to press article / blog site: http://techpresident.com/news/wegov/23918/denmark-government-will-not-allow-ordinary-citizens-have-digital-privacy

    Link to Danish MoJ report, in Danish: http://www.ft.dk/samling/20121/almdel/reu/bilag/125/1200765.pdf

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